Punjab-Haryana High Court
Naresh Kumar And Ors vs Gulzar Singh And Ors on 12 November, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
PARAMJIT KAUR SAINI
RSA No.4654 of 2013 -1- 2015.01.08 16:30
I attest to the accuracy and
authenticity of this document
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision:12.11.2014
RSA No.4654 of 2013
Naresh Kumar and others
---Appellants
versus
Guljar Singh and others
---Respondents
RSA No.4462 of 2013
Jagdeep Singh and another
---Appellants
versus
Guljar Singh and others
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr.Rajesh Sethi, Advocate
for the appellants
Mr. G.P.Singh, Advocate
for respondents No. 1 to 7 and 9
Mr. HPS Ishar, Advocate
for respondents No. 11 to 14, 20, 21, 25 and 26
Mr. Kanwaljit Singh, Senior Advocate with
Mr. Ajaivir Singh, Advocate
for respondents No. 17 and 18
Mr. S.S.Sahu, Advocate
for respondents No. 27 and 28
***
1. Whether Reporters of local papers may be allowed to see the
RSA No.4654 of 2013 -2-
judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
***
REKHA MITTAL, J.
By way of this order, I shall dispose of RSA No. 4462 of 2013 and RSA No. 4654 of 2013 as these have emerged out of the same judgments and decrees passed by the courts below whereby the suit filed by the plaintiffs Gulzar Singh and others has been decreed by the trial court and the decree dated 21.12.2010 passed by the trial court was affirmed in appeal and involve identical questions of law and facts, for adjudication. For facility of reference, facts are being taken from RSA No. 4654 of 2013.
The facts relevant for disposal of the present appeals are that Karnail Singh son of Kartar Singh and Smt. Bhagwan Kaur etc. were owners of land measuring 54 kanals 14 marlas situated at village Ratia, detailed in para 01 of the plaint. Plaintiffs No. 1 to 3 along with Harbans Singh were owners of land measuring 13 kanals 12 marlas situated at Ratia, also detailed in para 01 of the plaint. On the other hand, defendants No. 1 to 4 (appellants in RSA No. 4654 of 2013) were owners of land measuring 40 kanals 13 marlas, detailed in para 02 of the plaint. Karnail Singh etc. exchanged land measuring 68 kanals 06 marlas (suit property) with land measuring 40 kanals 13 marlas as per civil court judgment and decree dated 18.7.1988 passed in suit titled "Karnail Singh and others vs. Naresh Kumar and others" .
Defendants No. 1 to 4 purchased land measuring 40 kanals 13 marlas from Jeet Singh, Lal Singh, Baldev Singh and Darshan Singh vide RSA No.4654 of 2013 -3- sale deed dated 25.6.1988. Bant Singh and Baldev Singh (defendants No. 21 and 22) filed civil suit Nos. 607 of 1989 and 94 of 1989 pre-empting the sale in favour of defendants No. 1 to 4. In that suit, defendants No. 1 to 4 Naresh Kumar and others, Karnail Singh son of Kartar Singh, Bhagwan Kaur daughter of Kartar Singh, Gulzar Singh, Jagraj Singh, Darshan Singh and Harbans Singh sons of Kartar Singh were impleaded as defendants and defendants No. 5 to 10 filed counter claim against their co-defendants namely defendants No. 1 to 4. Both the civil suits were decreed as per judgment and decree dated 8.10.1992. Counter claim preferred by defendants No. 5 to 10 was also allowed. Defendants No. 1 to 4 preferred an appeal against judgment and decree dated 8.10.1992 which was dismissed by the District Judge, Fatehabad vide judgment dated 27.5.2006. At the time of hearing of the appeal by the District Judge, the counter claimants agitated their counter claim but the counter claim being against their co-defendants was allowed to be withdrawn with permission to file a separate suit.
The respondents-plaintiffs claimed that as land given by defendants No. 1 to 4 to the plaintiffs or their predecessor Karnail Singh as per judgment dated 18.7.1988 has been pre-empted, the exchange cannot sustain in the eyes of law and as a result, the plaintiffs and proforma defendants are entitled to recover possession of land measuring 68 kanals 06 marlas after demolition of construction raised by subsequent purchasers, sale deeds and mutations detailed in para 09 of the plaint are liable to be set aside as sales have been effected during pendency of pre-emption suits and counter claim.
RSA No.4654 of 2013 -4-
Appellants/defendants No. 1 to 4 filed the written statement challenging maintainability of the suit, locus standi of the plaintiffs to file the suit; suit being barred and the plaintiffs having not approached the court with clean hands. Karnail Singh and Bhagwan Kaur were owners in possession of land measuring 52 kanals 14 marlas and they agreed to sell this land to Naresh Kumar and Brij Lal in equal shares by an agreement of sale on 30.12.1987 and received Rs. 30,000/- as earnest money. The date for execution and registration of the sale deed was fixed as 25.6.1988 but was later extended upto 30.9.1988 and additional earnest money to the tune of Rs. 20,000/- was paid to Karnail Singh etc. Gulzar Singh, Jagraj Singh etc. were owners of land measuring 13 kanals 12 marlas and they agreed to sell the same to Naresh Kumar etc. at the rate of Rs. 30,000/- per acre and date for execution of sale deed was initially fixed as 25.6.1988 but later extended upto 30.9.1988 and additional earnest money to the tune of Rs. 10,000/- was paid on the date of extension i.e. 22.6.1988. Karnail Singh son of Kartar Singh entered into an agreement on 12.1.1988 for purchase of land measuring 40 Kanals 13 Marlas situated at village Ratia with Baldev Singh, Darshan Singh at the rate of Rs. 27,000/- per acre and paid Rs. 20,000/- as earnest money. Karnail Singh son of Kartar Singh and Darshan Singh requested defendants No. 1 to 4 to get the sale deed executed and registered in their favour in respect of land measuring 40 kanals 13 marlas which Karnail Singh agreed to purchase from Baldev Singh etc. It was further agreed that they will exchange land measuring 40 kanals 13 marlas with land of Karnail Singh. Thus, land measuring 40 kanals 13 marlas was purchased by defendants No. 1 to 4 at the instance of Karnail Singh. After RSA No.4654 of 2013 -5- registration of the sale deed, land measuring 40 kanals 13 marlas was given to Karnail Singh, Bhagwan Kaur etc. in exchange of land measuring 68 Kanals 06 marlas owned by them. The defendants paid full consideration of 68 kanals 06 marlas of land to Karnail Singh and Bhagwan Kaur etc. The plaintiffs previously filed counter claim in the case titled "Bant Singh etc. vs. Naresh Kumar etc." and the instant suit is barred under Order 23 Rule 1 of the Code of Civil Procedure. The plaintiffs were aware of sales made by defendants No. 1 to 4 in favour of defendants No. 5 to 20 and had seen them raising construction but never raised objection. The value of the property in question is Rs. 2-3 lakhs per acre as the suit property is within residential area of village Ratia. They have challenged claim of the plaintiffs for restoration of possession of land which has already been sold by defendants No. 1 to 4.
Defendant Nos. 5 to 7 and 14, 11, 12 and 17 and 21 and 22 filed their joint written statements respectively raising preliminary objections inline with the written statement filed by defendants No. 1 to 4 and also raised the plea that they are bona fide purchasers for consideration and without notice of previous litigation.
The controversy between the parties led to framing of following issues by the trial court:-
1. Whether the plaintiffs are entitled to the relief of possession as well as injunction as prayed for by them with respect to the disputed land on the grounds so mentioned in the plaint?OPP
2. Whether the plaintiffs have no cause of action or locus standi RSA No.4654 of 2013 -6- to file the present suit? OPP
3. Whether the suit is not maintainable?OPD
4. Relief To prove their case, the plaintiffs examined Gulzar Singh (plaintiff) PW1, P.C.Gupta, Advocate PW2, S.S.Jain, Advocate PW3, C.L.Narang, Advocate PW4. They tendered into evidence documents Ex.
P1 to P-45.
On the other hand, the defendants examined Om Parkash Gupta, Deed writer DW1, Naresh Kumar DW2, Subhash Chander DW3, Ram Parkash, Registry Clerk, Dw4 and Gurdev Singh attorney of Jagdeep Singh and Jagmeet Singh defendants No. 11 and 12 and tendered into evidence documents Ex. D1 to D17.
The learned trial court determined issue No. 1 in favour of the plaintiffs while issues No. 2 and 3 were answered against the defendants and ultimately, suit filed by the plaintiffs for restoration of possession of land measuring 68 kanals 06 marlas was decreed, judgment and decree dated 18.7.1988 passed in Civil Suit No. 556 of 1988 and mutation sanctioned on its basis, subsequent sale deeds in regard to land in dispute executed by defendants No. 1 to 4 in favour of their co-defendants, mutations sanctioned on the basis of sale deeds as well as mutation of partition bearing No. 11144 sanctioned on 2.12.1992 were held to be null and void and accordingly set aside. Defendants No. 21 and 22 were restrained from ousting the plaintiffs as well as proforma defendants from land measuring 40 kanals 13 marlas till possession of the disputed land is delivered to them and defendants No. 1 to 20 were restrained from RSA No.4654 of 2013 -7- alienating or transferring or raising construction over the disputed land.
Naresh Kumar and others (defendants No. 1 to 4) and Jagdeep Singh and another (defendants No. 11 and 12) carried the matter in appeals bearing No. RBT-210-CA of 2011 dated 18.1.2011/22.5.2012 which came to be decided by the first appellate court vide impugned judgment and decree dated 17.9.2013 and relief granted in favour of the plaintiffs with regard to their entitlement to possession of the suit property was affirmed.
Counsel for the parties have made submissions on the following substantial questions of law:-
1. Whether the suit filed by the respondents-plaintiffs is barred by limitation?
2. Whether the plaintiffs are not entitled to invoke provisions of Section 119 of the Transfer of Property Act to seek restoration of possession?
3. Whether decree of possession in favour of the plaintiffs infringes the principle "he who seeks equity must do equity?"
Counsel for the appellants contends that Bant Singh and Baldev Singh filed suit for pre-emption against Naresh Kumar and others in which previous owners of land measuring 68 kanals 06 marlas (suit land) were also arrayed as defendants. Karnail Singh and others preferred counter claim in regard to their entitlement to get back possession of the suit land from Naresh Kumar and others in case claim of the pre-emptors is accepted by the Court. It is argued that cause of action to challenge the judgment and decree dated 18.7.1988 (exchange decree) accrued to the plaintiffs in the RSA No.4654 of 2013 -8- year 1989. The suit could be filed within three years in view of provisions of Section 59 of the Limitation Act, 1963. Further submitted that as the plaintiffs have filed the suit for possession, at best, they were entitled to file suit within 12 years from 1989 and thus the period of limitation was available up to the year 2001.
Learned counsel would further argue that the first appellate court, in the proceedings for pre-emption, allowed the plaintiffs (defendants therein) to withdraw counter claim without deciding if the counter claim was likely to fail due to any formal defect keeping in view the provisions of Order 23 Rule 3 of the Code of Civil Procedure. It is also submitted that counter claim filed by the defendant against his co-defendants can be maintained in certain circumstances where the co-defendants by way of counter claim has claimed some relief both against the plaintiff(s) as well as co-defendant(s). For this purpose, he has relied upon Rohit Singh and others vs. State of Bihar (Now state of Jharkhan) and others2007(1) R.C.R.(Civil)674, Panna Lal vs. State of Bambay an others 1963 AIR (SC)1516, Kulwant Singh vs. Gurcharan Singh 2002(4)R.C.R.(civil)179, Bhagmati Devi vs. Anandi Devi and others 2008 AIR (Patna) 55 and Kirodh Chandra Dash and others vs. Bimal Dash and others MANU/OR/0199/2008.
Another submission, in this regard, made by counsel is that permission granted by the court to withdraw the counter claim and file a fresh suit on the same cause of action in no circumstances can extend the period of limitation, therefore, suit filed by the plaintiffs in the year 2006 is clearly barred by limitation. In support of his contention on the question of RSA No.4654 of 2013 -9- limitation, he has cited Prem Singh and others vs. Birbal and others 2006(3)RCR(Civil) 381, Ramti Vs. Union of India, 1995(1)SCC 198, Sewa Singh vs. Joginder Singh, 1986 PLJ 113(P&H), Telu vs. Ram Kishan, 1991PLJ 672(P&H).
Counsel has further submitted that the courts below have accepted claim of the plaintiffs for restoration of possession under Section 119 of the Transfer of Property Act (in short "TP Act") but provisions of Section 118/119 of the TP Act have not been enforced in the State of Haryana by way of notification in the official gazette. However, it has been fairly conceded by counsel that in the absence of provisions of Section 118/119 of the TP Act being made applicable to the State of Haryana, general principles of Section 119 of the TP Act would be applicable to the properties situated within the State of Haryana. Another plea raised is that under Section 119 of the TP Act If any party to an exchange by reason of any defect in the title of the other party is deprived of the thing or any part thereof received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, the other party is liable to either return the thing transferred, if the same is in his possession or possession of a transferee without consideration or damages for the loss caused thereby. Counsel would submit that the plaintiffs could become entitle to seek possession of the suit land only if the same was in possession of the appellants or in possession of a transferee without consideration. It is argued that as per case set up by the plaintiffs, the suit land has already been transferred by Naresh Kumar and others through various sale deeds executed in the years 1991/1992, challenged by the plaintiffs. No evidence RSA No.4654 of 2013 -10- has been led by the plaintiffs that those transfers in favour of defendants No. 5 to 20 are without consideration. Further argued that defendants No. 1 and 2 sold different parcels of suit land to its vendees (defendants No. 5 to 20) who belong to lower middle class and raised construction of small houses on purchased land, therefore, a serious prejudice would be caused to them in case the judgments passed by the courts below are affirmed and possession of the suit land is delivered to the plaintiffs after demolition of their houses, constructed by the vendees to knowledge of the plaintiffs without any objection. Counsel has further argued that the plaintiffs can only be awarded damages for the loss and the plaintiffs can withdraw the pre- emption money deposited by the pre-emptors in compliance with the judgment and decree passed in the pre-emption suit.
Sh. Rajesh Sethi, Advocate has submitted that it is one of the cardinal principles in law that he who seeks equity must do equity. It is urged that the plaintiffs entered into agreements dated 30.12.1987 for sale of suit land in favour of Naresh Kumar and Brij Lal and received total sale consideration by way of earnest money at the time of execution of agreements and extension of date for execution of sale deeds upto 30.9.1988. Counsel would argue that these dates were extended to safeguard interests of the appellants and ensure that decree for exchange of land is passed by the court before the extended date. Further submitted that Karnail Singh entered into an agreement on 12.1.1988 for purchase of land measuring 40 Kanals 13 marlas with Baldev Singh and Darshan Singh. On request and proposal given by Karnail Singh and Darshan Singh, the present appellants got registered sale deed(s) in respect of land measuring RSA No.4654 of 2013 -11- 40 kanals 13 marlas which was actually agreed to be purchased by Karnail Singh from Baldev Singh and Darshan Singh (erstwhile owner). It is further argued that as the parties agreed for exchange of different parcels of land in order to avoid execution of sale deed by Karnail Singh and others in favour of Naresh Kumar and others and Naresh Kumar and others got the sale deed of land measuring 40 kanals 13 marlas registered in their name which was actually agreed to be purchased by Karnail Singh son of Kartar Singh, thus, decree of possession would result in depriving the appellants of the suit land agreed to be purchased by them. It is argued that payment in regard to purchase of land measuring 40 kanals 13 marlas was made by Karnail Singh, therefore, interests of justice would be served if the plaintiffs, in lieu of damages, are permitted to withdraw pre-emption money lying deposited in the Court.
Counsel for the contesting respondents/plaintiffs has submitted that once the plaintiffs have been allowed to withdraw their counter claim with permission to file a fresh suit on the same cause of action, the appellants can neither be allowed to challenge the order as it has attained finality between the parties nor can they raise the plea that the suit is barred by limitation which was filed immediately after decision by the first appellate court in pre-emption proceedings on 27.5.2006.
It is further argued that as the appellants alienated the suit land in favour of subsequent vendees during pendency of the suit for pre- emption and counter claim preferred by the respondents-plaintiffs, the sale deeds executed by the appellants in favour of subsequent purchasers (defendants No. 5 to 20) are hit by the principle of lis pendens. In this RSA No.4654 of 2013 -12- context, reference has been made to judgment of the Hon'ble Supreme Court of India in Usha Sinha vs. Dina Ram and others 2008(3) RCR (Civil)
145. Other judgments relied upon by counsel are Inderjeet Wadhwa vs. Jagjit and another, 2005(2)RCR(Civil) 316(P&H) and Balwant Singh vs. Buta Ram and others, 2010(7)RCR(Civil) 2033. It is argued that plea of bona fide purchaser for consideration is not available to the subsequent vendees as their sales are hit by the principle of lis pendens under Section 52 of TP Act. In addition, it is submitted that none of the subsequent vendees had appeared in the witness box to substantiate their plea of being bona fide purchasers without notice of defect in tittle of their vendors or pendency of litigation in the court. Counsel would submit that defendants No. 11 and 12 examined Gurdev Singh, their attorney but statement of an attorney is not sufficient to prove the facts which are to the personal knowledge of the purchasers and establish plea of bona fide purchase.
With regard to plea of the appellants that equity stands against the plaintiffs, it is argued that the plaintiffs filed counter claim in the earlier litigation for pre-emption to which reply was filed by the appellants but they never raised any such plea that the plaintiffs had agreed to sell the suit land vide agreements dated 30.12.1987, therefore, plea raised by the appellants in this regard after seven years of their earlier stand is nothing but the result of an afterthought, based upon fabricated documents. Alternatively, it is submitted that assuming that the plaintiffs agreed to sell the suit land in the year 1987, the agreements stand superseded in view of exchange of land between the parties as has been rightly held by the courts below. Further submitted that the appellants could either seek specific performance of RSA No.4654 of 2013 -13- agreements or refund of money allegedly paid by them but the agreements can not deprive the plaintiffs of their right to seek possession of suit land as title of the appellants in respect of exchanged land measuring 40 kanals 13 marlas was found to be defective. There is no evidence on record to establish that Karnail Singh entered into an agreement with Baldev Singh and Darshan Singh for purchase of land measuring 40 kanals 13 marlas on 12.1.1988 in regard whereof, sale deed was admittedly executed in favour of Naresh Kumar and others. The last submission made by counsel is that there is no evidence on record that the parties agreed to exchange land with any such understanding as has been sought to be pressed into service by the appellants-defendants. In addition, it is submitted that the appellants would be compensated for payment allegedly made by them under the agreements dated 30.12.1987 as they are entitled to withdraw the pre-emption money, indisputably, deposited by the pre-emptors.
I have heard counsel for the parties and perused the records. The plaintiffs-respondents filed counter claim in pre-emption proceedings seeking recovery of possession of land in dispute. The counter claim was allowed by the trial court but later it was permitted to be withdrawn by the District Judge while disposing of appeal preferred by Naresh Kumar and others. Counsel for the appellants has sought to find fault with the findings of the District Judge granting permission to withdraw the counter claim and file a fresh suit on the same cause of action but their stand in this regard is misconceived and merits rejection. Firstly, the order/judgment passed by the District Judge in the earlier proceedings, which stood finally determined vide judgment dated 27.5.2006 is not RSA No.4654 of 2013 -14- amenable to challenge in the present case. As per settled legal position, judgment/order passed by a competent court of law even if illegal is binding upon the parties unless set aside in appropriate proceedings. There is no plea raised by the appellants that the said judgment is the result of fraud which can be challenged in collateral proceedings as well.
Perusal of the judgment dated 27.5.2006 Ex. P45 particularly the observations made in paras 27 and 28 would make it manifest that it was counsel for the present appellants (appellants therein as well) who raised an issue that respondents No. 3 to 8 (Karnail Singh and others) have a remedy to take possession of land transferred by them in favour of the appellants by filing a separate suit and not by way of counter claim. Faced with that situation, counsel for respondents No. 3 to 8 (plaintiffs herein) made a statement that he does not press counter claim at this stage and be permitted to file separate suit for possession of land transferred by him in favour of the appellants. The District Judge, Fatehabad passed the order and an extract whereof reads as follows:-
"As the respondents No. 3 to 8 have their remedy to seek possession of the land transferred by them in favour of the appellants by way of separate suit, so, they are permitted to file a suit seeking possession of the land given by them in transfer. In these circumstance, there is no need to give any finding on issues No. 4 and 15 and finding of the learned trial court on these issues is hereby set aside."
The appellants cannot be permitted to approbate and reprobate RSA No.4654 of 2013 -15- or find fault in the order allowing withdrawal of counter claim which was sought to be withdrawn by the respondents-plaintiffs in view of objection raised by counsel for the appellants in the earlier proceedings. This apart, counter claim can be filed by the defendant(s) against the plaintiff(s) which is like a cross suit filed by the contesting party. Counsel for the appellants has relied upon certain judgments to support his contention that counter claim can be maintained by a defendant against his co-defendant in case the counter claimant has sought relief against the co-defendant as well as the plaintiff. In the case at hand, counsel for the appellants has failed to convince the court that in the counter claim preferred by the respondents- plaintiffs in the earlier proceedings, they had claimed any relief against the plaintiffs of the said suit, therefore, counter claim preferred by the respondents-plaintiffs was not maintainable even though wrongly allowed by the trial court in those proceedings.
There is another aspect of the matter which invites attention of the Court. In the suit for pre-emption filed by Bant Singh and Baldev Singh against Naresh Kumar and others in which Karnail Singh and others were arrayed as co-defendants, the respondents/plaintiffs had contested claim of the pre-emptors and supported cause of Naresh Kumar and others that Bant Singh and another had no right to pre-empt the sale effected in favour of Naresh Kumar and others regarding land measuring 40 kanals 13 marlas. However, they filed counter claim that in case they are deprived of ownership and possession of land measuring 40 kanals 13 marlas received in exchange, they should be restored possession of land measuring 68 kanals 06 marlas given by them in exchange to Naresh Kumar and others. RSA No.4654 of 2013 -16- So long as claim of pre-emptors was not allowed by the Court, the respondents/plaintiffs otherwise were not entitled to maintain their counter claim against Naresh and others. The judgments cited by counsel for the appellants on this aspect of the matter have no bearing in the peculiar facts of the instant case.
To answer the issue of limitation, the crucial question is, as to when the cause of action to seek possession accrued in favour of the respondents-plaintiffs. So long as title of the respondents-plaintiffs in regard to land measuring 40 kanals 13 marlas received in exchange by way of judgment dated 8.10.1992 was not finally set aside by the competent court of law, the respondents-plaintiffs could not seek possession of the suit land on the plea that there was some defect in the title of the appellants. As proceedings in the pre-emption suit were finally decided on 27.5.2006 by the District Judge, Fatehabad, cause of action actually accrued to the plaintiffs from that date and, therefore, suit filed by the plaintiffs- respondents in December 2006 is clearly within limitation. Analysed from any angle, I do not find merit in the contentions of the appellants that suit filed by the respondents-plaintiffs is barred by limitation.
This brings the court to the implications of Section 119 of the TP Act. Counsel for the contesting respondents has not disputed that provisions of Section 118 of the TP Act have not been extended to the State of Haryana, therefore, only general principles incorporated in Section 119 of the TP Act would be applicable to the land in dispute.
However, before dealing with the provisions of Section 119 of the TP Act, primary question for adjudication is whether transfer of suit RSA No.4654 of 2013 -17- land by the appellants during pendency of pre-emption proceedings is hit by principle of lis pendens under Section 52 of the TP Act.
Counsel for the appellants has contended that since suit land measuring 68 kanals 06 marlas was subject matter of counter claim only which was later withdrawn by the respondents-plaintiffs, transfer of land by the appellants in favour of defendants No. 5 to 20 is not hit by principle of lis pendens. There cannot be any dispute about the fact that once the counter claim has been allowed to be withdrawn, for all intents and purposes, it is deemed as if no such counter claim was filed by the respondents-plaintiffs. Nevertheless, perusal of judgment Ex. P43 passed by the trial court in pre-emption proceedings shows that the pre-emptors challenged the exchange decree passed in civil suit No. 556 decided on 18.7.1988 and mutation No. 9151 dated 17.8.1988 with the allegations that after purchase by defendants No. 1 to 4 (appellants herein) they entered into exchange of suit land with subsequent transferees, defendants No. 5 to 10 and the impugned judgment and decree in civil suit no. 556 have no binding effect on rights of the plaintiffs. The trial court on the basis of pleadings of the parties, formulated 18 issues and issues No. 2 and 3, relevant for the present controversy, read as follows:-
2. Whether the judgment and decree dated 18.7.1988 passed in civil suit no. 556 is liable to be set aside?OPP
3. Whether mutation No. 9151 (there appears to be some typographical mistake) sanctioned on 17.8.1988 in favour of respondents No. 5 to 10 is liable to be set aside?OPP Issues No. 2 and 3 were decided separately in view of RSA No.4654 of 2013 -18- discussion in paras No. 17 to 22 of the judgment Ex. P43. Both these issues were decided in favour of defendants No. 5 to 10 and against the plaintiffs and remaining defendants and the operative part of the findings on these issues is quoted hereinbelow:-
"In these circumstances, impugned judgment and decree passed in civil suit no. 556 of 1988 decided on 18.7.1988 and mutation sanctioned on the basis thereof bearing No. 9151 dated 17.8.1988 are liable to be set aside and I do hereby set aside the impugned judgment and decree passed in civil suit no. 556 of 1988 and mutation no. 9151 dated 17.8.1988, Both these issued are decided in favour of defendants No. 5 to 10 and against the plaintiffs and remaining defendants."
In the appeal preferred by the appellants, the District Judge on account of withdrawal of counter claim, observed that there is no need to give any finding on issues No. 4 and 15 and finding of the learned trial court on these issues is set aside. The appellate court in judgment dated 27.5.2006 (Ex. P45) did not set aside the findings of the trial court on issues No. 2 and 3 despite withdrawal of counter claim by the respondents- plaintiffs. As the findings recorded by the trial court on issues No. 2 and 3 were affirmed in appeal and attained finality between the parties, I do not find merit in the contention of the appellants that due to withdrawal of counter claim, land in dispute ceased to be subject matter of earlier litigation and therefore, transfer of said land by the appellants in favour of subsequent purchasers is not hit by principle of lis pendens. As has been noticed hereinbefore but for the sake of repetition that erroneous and even RSA No.4654 of 2013 -19- illegal judgment is binding upon the parties unless set aside in appropriate proceedings. As in the present case the findings of the trial court setting aside the decree of exchange dated 18.7.1988 have attained finality and thus binding upon the parties, transfer of suit land by the appellants in favour of subsequent purchasers is hit by principle of lis pendens. This apart, none of the subsequent purchasers personally stepped into the witness box to substantiate his plea that he is a bona fide purchaser for consideration without knowledge of any defect in title of his vendor(s) or pendency of litigation. Keeping in view the above that transfer of suit land by the appellants is hit by principle of lis pendens, the appellants cannot gain any advantage to their contention from the fact that they are not in possession of suit land which was transferred in favour of subsequent vendees who have raised construction thereon. Counsel for the appellants has fairly conceded that in case transfer of suit land by the appellants during pendency of earlier proceedings (pre-emption) is held to be hit by principle of lis pendens, the provisions of Section 119 of the TP Act would not be available to them for challenge to the judgments impugned.
Much stress has been laid by counsel for the appellants that respondents/plaintiffs are not entitled to seek possession as equity stands against them. For this purpose, they primarily relied upon the agreements purportedly executed on 30.12.1987 wherein date for execution of sale deeds was extended upto 30.9.1988. First of all, no such agreement was set up by the appellants in reply to counter claim/cross suit filed by the plaintiffs which remained pending in the Court for about 07 years. Secondly, assuming that such agreements were executed for sale of suit RSA No.4654 of 2013 -20- land, those agreements stood superseded once the parties agreed for exchange of land and filed civil suit on the basis of exchange and got a decree from the civil court, passed on 18.7.1988. Further more, the appellants have failed to substantiate their plea that Karnail Singh agreed to purchase land measuring 40 kanals 13 marlas from Bant Singh and Baldev Singh vide agreement dated 12.1.1988, basis of their contention that the appellants purchased that land on request made by said Karnail Singh or the parties agreed to exchange two separate parcels of land. I would hasten to add that even if the parties have entered into any such arrangement in order to avoid payment of stamp duty and registration charges etc. no such plea of the appellants can be entertained much less accepted being opposed to public policy. In this view of the matter, I find it difficult to accept contention of the appellants that as a matter of fact, it was for Karnail Singh to get a sale deed registered in his favour pertaining to land measuring 40 kanals 13 marlas and had Naresh Kumar and others not acceded to his request for getting the sale deed registered in their favour, it was Karnail Singh who would have lost the land in respect whereof claim of Bant Singh and another by way of pre-emption has been accepted.
Looked from another angle, plea of the appellants is that they entered into agreements to purchase suit land and paid the entire sale consideration. The appellants, at best, could file a suit seeking specific performance of the agreements or in the alternative recovery of earnest money but they did not take recourse to appropriate proceedings for necessary relief within the prescribed period of limitation. As the appellants did not seek remedy available in law within the stipulated period of RSA No.4654 of 2013 -21- limitation, they cannot seek any relief on the basis of agreements executed in the year 1987. This apart, as the respondents-plaintiffs agreed to part with land measuring 68 kanals 06 marlas in lieu of land measuring 40 kanals 13 marlas owned by the appellants, it can be safely inferred that value of land measuring 40 kanals 13 marlas was equal to that of 68 kanals 06 marlas (suit land). The appellants have already sold the suit land and purportedly received sale consideration from its vendees, but they are also entitled to recover the amount of pre-emption money deposited by the pre- emptors in compliance with directions issued by the trial court. The appellants would be adequately compensated in regard to any amount purportedly paid by them under the agreements dated 30.12.1987. I would like to clarify that it is the candid plea of the appellants that entire expenses to purchase land measuring 40 kanals 13 marlas were incurred by Karnail Singh (predecessor of the respondents/plaintiffs). Under these circumstances, there is no question of the respondents/plaintiffs to be deprived of fruits of litigation on equitable consideration.
For the reasons aforesaid, finding no merit, the appeals are dismissed with costs.
(REKHA MITTAL) JUDGE 12.11.2014 PARAMJIT